Com. v. Kasse, W. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM HENRY KASSE :
:
Appellant : No. 1566 MDA 2022
Appeal from the Judgment of Sentence Entered October 6, 2022
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0004347-2013
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and SULLIVAN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED: AUGUST 22, 2023
William Henry Kasse appeals from the judgment of sentence entered
following his conviction for two counts of conspiracy to receive stolen
property.1 Kasse’s counsel filed a petition to withdraw as counsel and a brief
pursuant to Anders v. California, 386 U.S. 738 (1967). We grant counsel’s
petition to withdraw and affirm the judgment of sentence.
In February 2015, Kasse pled guilty to the above crimes. The court
sentenced him to three to 23 months’ incarceration for the first count of
conspiracy and a consecutive term of 36 months reporting probation for the
remaining count of conspiracy. The court also ordered that he pay restitution
in the amount of $17,901.92.
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1 18 Pa.C.S.A. §§ 903 and 3925(a), respectively.
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On February 16, 2022, the probation department filed a violation report.
The court aptly summarized the allegations of the report and what proceeded
thereafter as follows:
The report alleged that [Kasse] committed technical
violations while on probation. Specifically, [Kasse] failed to
report as directed for a period of three months and was in
arrears towards his financial responsibilities – most
importantly, restitution payments to the victims. On March
9, 2022, Probation Services filed another probation violation
report, this time alleging that [Kasse] had been newly
arrested after being found in the possession of a firearm that
was stolen from a vehicle at his workplace in Monroe
County. On September 2, 2022, [Kasse] pled guilty to the
charge of firearm not to be carried without a license (graded
as a misdemeanor of the first degree) in Monroe County.
At his Gagnon II hearing on August 11, 2022, [Kasse]
admitted both the technical and new arrest violations. N.T.
Gagnon Hearing, 8/11/22, p.2.
Opinion Pursuant to Pa.R.[A.]P. 1925(a), filed 1/31/23, at 1-2 (footnote
omitted).2 The court ordered a Pre-Sentencing Investigation Report (“PSI”)
and sentenced Kasse to 18 to 36 months’ incarceration and reinstated
restitution. This timely appeal followed.
Counsel lists one issue in the Anders brief: “Whether the trial court
abused its discretion in sentencing [Kasse] to a State Correctional Facility
____________________________________________
2 Prior to 2022, the court resentenced Kasse for violations of probation on two
occasions. The first occurred on April 12, 2018, when the court revoked
Kasse’s probation and resentenced him to a term of five years reporting
probation. See Order of Court, filed 4/12/18. The second occurred on
November 4, 2020, where the court revoked Kasse’s probation and
resentenced him to 23 days to 12 months’ incarceration with 23 days of credit
for time served followed by a consecutive term of four years reporting
probation. See Order of Court, filed 11/4/20.
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without properly addressing all the factors set forth in the Sentencing Code.”
Anders Br. at 1.
Because counsel has filed an Anders brief, we must first address
whether counsel has satisfied the procedural requirements under Anders.
See Commonwealth v. Cox, 231 A.3d 1011, 1014 (Pa.Super. 2020).
Counsel files an Anders brief “when counsel believes an appeal is frivolous
and wishes to withdraw from representation[.]” Id. When filing an Anders
brief, counsel must:
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record, counsel
has determined the appeal would be frivolous; (2) file a brief
referring to any issues that might arguably support the
appeal, but which does not resemble a no-merit letter; and
(3) furnish a copy of the brief to the defendant and advise
him of his right to retain new counsel, proceed pro se, or
raise any additional points he deems worthy of this Court's
attention.
Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa.Super. 2006)
(citation omitted).
An Anders brief must also:
(1) provide a summary of the procedural history and facts,
with citations to the record;
(2) refer to anything in the record that counsel believes
arguably supports the appeal;
(3) set forth counsel’s conclusion that the appeal is
frivolous; and
(4) state counsel’s reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous.
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Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
If counsel has satisfied the above requirements, we then conduct “a full
examination of all the proceedings[ ] to decide whether the case is wholly
frivolous.” Commonwealth v. Yorgey, 188 A.3d 1190, 1196 (Pa.Super.
2018) (en banc) (quoting Anders, 386 U.S. at 744).
Counsel has satisfied the procedural requirements under Anders. He
filed a petition with this Court to withdraw, stating that after his conscientious
review of the record, he concluded that the appeal would be frivolous. He also
filed a brief referencing any issues that might arguably support the appeal,
furnished a copy of the brief to Kasse, advised him of his right to retain new
counsel or proceed pro se, and advised him that he could file his own brief
with this Court. See Application to Withdraw as Counsel, filed 3/22/23; Letter
from Matthew P. Kelly to William Henry Kasse, dated 3/14/23. Additionally,
counsel’s Anders brief summarizes the procedural history and facts, with
citations to the record; refers to anything in the record that counsel believes
arguably supports the appeal; sets forth counsel’s conclusion that the appeal
is frivolous; and explains his reasons for concluding that the appeal is
frivolous, including citation to relevant law. Kasse has not responded to
counsel’s petition to withdraw.
Having determined that counsel satisfied the procedural requirements
of Anders, we now address the issue raised in counsel’s Anders brief –
whether the court abused its discretion in sentencing Kasse without
consideration of all the sentencing factors in the Sentencing Code. This issue
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challenges discretionary aspects of Kasse’s sentence, and there is no absolute
right to appellate review. See Commonwealth v. Conte, 198 A.3d 1169,
1173 (Pa.Super. 2018). Rather, we must first determine whether: “(1) the
appeal is timely; (2) the appellant has preserved his issue; (3) his brief
includes a concise statement of the reasons relied upon for allowance of an
appeal with respect to the discretionary aspects of his sentence; and (4) the
concise statement raises a substantial question whether the sentence is
inappropriate under the Sentencing Code.” Commonwealth v. Green, 204
A.3d 469, 488 (Pa.Super. 2019).
Here, Kasse fails to satisfy the second prong of our four-part analysis.
Kasse made no objections at the sentencing hearing and did not file a post-
sentence motion challenging his sentence. Therefore, he did not preserve this
issue for appeal. See Commonwealth v. Cartrette, 83 A.3d 1030, 1042
(Pa.Super. 2013) (en banc) (stating claims challenging discretionary aspects
of sentence must be raised in post-sentence motion or at sentencing, and the
failure to do so results in waiver). This sentencing claim is therefore waived
and wholly frivolous for direct appeal. See id. at 1042-43 (finding challenge
to discretionary aspects of sentence frivolous where appellant failed to
preserve claim below); Commonwealth v. Tukhi, 149 A.3d 881, 888
(Pa.Super. 2016) (“An issue that is waived is frivolous”).
Further, we found no other non-frivolous claims upon our independent
review of the entire record. Therefore, we grant counsel’s petition to withdraw
and affirm the judgment of sentence.
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Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/22/2023
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